37822/16

FIFTH SECTION CASE OF ZAIKIN v. UKRAINE (Application no. 37822/16)           JUDGMENT   STRASBOURG 11 May 2023       This judgment is final but it may be subject to editorial revision.   In the case of Zaikin v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Mārtiņš Mits, President,  Mattias Guyomar,  Mykola Gnatovskyy, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 6 April 2023, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 17 June 2016. 2.  The applicant was represented by Mr O.V. Mytsyk, a lawyer practising in Lviv. 3.  The Ukrainian Government (“the Government”) were given notice of the application. THE FACTS 4.  The applicant’s details and information relevant to the application are set out in the appended table. 5.  The applicant complained of the lack of relevant and sufficient reasons for detention. He also raised a complaint under Article 6 § 1 of the Convention concerning the excessive length of criminal proceedings. THE LAW ALLEGED VIOLATION OF ARTICLE 5 § 3 of the Convention 6.  The applicant complained principally of the lack of relevant and sufficient reasons for detention. He relied on Article 5 § 3 of the Convention. 7.  The Court reiterates that, according to its established case-law under Article 5 § 3 of the Convention, the persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings. The Court has also held that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities. When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures for ensuring this person’s appearance at trial. The requirement for the judicial officer to give “relevant” and “sufficient” reasons for the detention – in addition to the persistence of reasonable suspicion – applies already at the time of the first decision ordering detention on remand, that is to say “promptly” after the arrest (see, among other authorities, Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 87 and 102, 5 July 2016). 8.  In the leading case of Korban v. Ukraine, no. 26744/16, §§ 158-81, 4 July 2019, the Court already found a violation in respect of issues similar to those in the present case. 9.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the domestic courts failed to provide relevant and sufficient reasons for the applicant’s pre-trial detention. 10.  These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 11.  The applicant submitted a complaint under Article 6 § 1 of the Convention concerning the excessive length of criminal proceedings. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of the Convention in the light of its findings in Nechay v. Ukraine, no. 15360/10, 1 July 2021. APPLICATION OF ARTICLE 41 OF THE CONVENTION 12.  Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 13.  The applicant did not submit any claims for just satisfaction, despite being invited to do so. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that this application discloses a breach of Article 5 § 3 of the Convention concerning the lack of relevant and sufficient reasons for detention; Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table). Done in English, and notified in writing on 11 May 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.    Viktoriya Maradudina Mārtiņš Mits  Acting Deputy Registrar President     APPENDIX Application raising complaints under Article 5 § 3 of the Convention (lack of relevant and sufficient reasons for detention) Application no. Date of introduction Applicant’s name Year of birth Period of detention Court which issued detention order/ examined appeal Specific defects Other complaints under well-established case-law 37822/16 17/06/2016 Vyacheslav Yuriyovych ZAIKIN from 09/02/2016 to 08/04/2016 Shevchenkivskyy District Court of Lviv failure to assess the applicant’s personal situation reducing the risks of re‑offending, colluding or absconding; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice Art. 6 (1) – excessive length of criminal proceedings – since 09/02/2016 and still pending before the first instance